JUDGMENT OF 13. 5. 1970 — CASE 39/69 FOURNIER v COMMISSION

In Case 39/69

THE COURT (First Chamber) composed of: R. Monaco, President of Chamber, A. M. Donner and J. Mertens de Wilmars (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

The applicant was taken into the service of the Commission with effect from 1 September 1964 as a member of the auxiliary staff in Group A I, Step 2, and was appointed a member of the temporary staff in Grade 1, Step 3, on 31 December 1968.

When he finished his employment as an auxiliary servant he had due to him 47 days' leave not taken owing to the requirements of the service and for these he requested financial compensation as provided for by Article 58 of the Conditions of Employment of Other Servants, which provides that ‘Where it has not been possible, owing to the requirements of the service, for a member of the auxiliary staff to be given leave… during his employment, any days of leave not taken shall be paid for as extra days worked’.

The Head of the Personal Rights Division recommended that this request be granted (Schedule II to the statement of defence), and accordingly an order for payment was issued in favour of the applicant on 28 March 1969 (Schedule VI to the statement of defence) and sent to the official responsible for financial control for prior approval. This approval was refused in a memorandum of 8 April 1969 (Schedule VI to the statement of defence), the reason given being that the requirements of the service which prevented the applicant from taking all his leave in 1968 should be explained in more detail and that the days of leave not taken should be carried forward to 1969 instead of being paid for, because the applicant had remained in the service of the Commission even though he was now in a different capacity from that of auxiliary servant.

Following this refusal the Directorate General for Personnel and Administration decided in a memorandum dated 13 May 1969 (Schedule IV to the application), that the number of days' leave not taken should be carried forward to 1969 under the conditions applicable to all the officials in the service. These provisions entitled the applicant, according to the Commission, to carry forward a total of 29 days' leave into 1969. The applicant lodged the present application on 11 August 1969.

The written procedure followed the normal course.

The Court (First Chamber) decided after hearing the views of the Advocate-General and the report of the Judge-Rapporteur to open the oral proceedings without any preparatory inquiry.

The parties presented oral argument at the hearing on 1 February 1970.

The Advocate-General delivered his opinion at the hearing on 11 March 1970.

II — Conclusions of the parties

The applicant claims that the Court should :

1) Annul the decision of 13 May 1969;

2) Having done so, order the Commission of the European Communities to pay Mr Fournier the sum of seventy-seven thousand and ninety-three Belgian francs with the interest fixed by law, as compensation for 47 days' leave not taken owing to the requirements of the service during the period of his employment as an auxiliary servant ;

3) Order the Commission of the European Communities to pay all costs.

The defendant contends that the Court should:

dismiss the application as unfounded,

order the applicant to pay the costs.

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows :

1. The legal basis of the decision challenged

The applicant claims that since, when his employment as an auxiliary servant came to an end he had still 47 days' leave to take and they had not been taken owing to the requirements of the service, he is entitled to financial compensation as provided for by Article 58 of the Conditions of Employment of Other Servants.

The defendant does not deny that it was the requirements of the service which prevented the applicant from taking his leave before 31 December 1968. It is however of the opinion that he cannot claim the compensation allowed by Article 58, and may only carry forward the number of days leave not taken to 1969 in accordance with the conditions applicable in respect of officials which apply by analogy to the applicant.

In support of its view it claims that Article 58 can only apply by way of exception. There is no ground for applying it when the relationship between the servant and the institution continues, even though in a different form, as is the case here. This interpretation is based on the social purpose of leave, for the person who remains in the service of the institution continues to be in a legal position which allows him the benefit of leave not taken during the preceding year.

It follows that a member of the auxiliary staff appointed to the temporary staff or appointed as an official can no longer claim payment for leave not taken but must have the leave carried forward to the following year.

Since there is no provision in the Staff Regulations for such carrying forward in the case of auxiliary servants who, at the end of their employment, continue to work for an institution, the first paragraph of Article 4 of Annex V to the Staff Regulations was applied by analogy, in accordance with the provisions of the internal administrative measures which appeared in Staff Courier No 41 of 7 November 1968, to all servants of the Commission who were in the same position as the applicant.

The defendant also finds support for its argument in the provisions of the Staff Regulations which envisage the continuity of certain pecuniary rights acquired by the auxiliary servant during the period of his employment prior to becoming an official. This applies, for example, in calculating the periods of service to be taken into consideration in respect of payment of retirement pension under Article 3 (c) of Annex VIII to the Regulations.

The applicant replies that the interpretation put forward by the defendant distorts the meaning of Article 58; the provision does not envisage only the final departure from the service of the auxiliary servant, but also completion of the period of his employment and the law must be applied as it appears from its actual wording, which is clear, categorical and precise.

The soundness of his own interpretation was in any case, he says, confirmed by the Director General for Personnel who, in his memorandum of 28 March 1969, acknowledged that Article 58 expressly uses the words ‘during his employment’, whilst in the case of officials and temporary staff the words used are ‘leaving the service’.

In the absence of any provision for coordinating the two sets of regulations, leave to which a servant is entitled should be compensated for in accordance with Article 58 and the Commission cannot thwart this express provision by invoking the internal administrative measures which appeared in Staff Courier No 41 of 7 November 1968. In any event the analogy with the authoritative provision on which the defendant relies is a myth since the first paragraph of Article 4 of Annex V to the Staff Regulations relates to leave not used up for reasons ‘other than the requirements of the service’ and does not therefore apply.

Besides that there is nothing in the conditions of employment of auxiliary staff which prevents them from accumulating leave entitlement for days not taken owing to the requirements of the service. Such days of leave all give rise to a right to compensation at the end of the period of employment and the first paragraph of Article 4 of Annex V to the Staff Regulations — which does place a limit on the number of days which can be carried forward — does not therefore, according to the applicant, apply to auxiliary staff.

The defendant contends that the provisions concerning the carrying forward of leave entitlement were merely mentioned in order to show that, in this respect, the applicant was treated in the same way as all the servants or officials, and do not constitute an argument in favour of either thesis.

2. The fraudulent nature of the decision challenged

The applicant claims that the refusal to allow him what was due to him and, in particular, the refusal of approval by the Financial Controller were motivated by spite.

Moreover, the assistant to the Director General for Industrial Affairs told him that approval was refused him as a result of his making an application to the Court of Justice (Case 18/69).

The alleged absence of justification for this was, he says, originally, the main reason for the refusal of approval on 8 April 1969.

The fraudulent nature of this conduct is obvious since the defendant has been forced to acknowledge expressly in its defence that on 31 December 1968 the applicant still had 47 days' leave not used up owing to the requirements of the service.

This fraudulent conduct can be the only explanation for a refusal otherwise incomprehensible, since the refusal runs contrary to favourable decisions taken by three divisions within the Commission (Personal Rights, Staff Regulations and Disputes out of Court, Remuneration Allowances).

The defendant''s reply is that the arguments relied on by the applicant are of a personal nature and should be rejected because no shred of proof is given for them and, especially, because they played no rôle whatsoever in the decision of the Director General for Personnel and Administration of 13 May 1969.

The decision challenged was in fact taken as a result of the refusal of the Financial Controller to grant his approval and in application of a procedure expressly laid down in the Financial Regulation. It can be seen from the grounds given for refusing approval that the Financial Controller would have objected to payment's being made for the leave not taken even if a certificate had been produced by the applicant stating that he had been prevented from taking it by the requirements of the service.

Even without production of the certificate required the decision challenged would have been sufficiently founded on the ground of the continuance of the employment relationship.

3. Rights created by the decision of 28 March 1969

It is further claimed by the applicant that the denial by the Commission of the European Communities that the applicant's leave entitlement should be granted in the form of compensation is neither admissible nor well founded since it has expressly accepted and ratified such a course of action.

In fact the Administration accepted his request of 27 January 1969 when it sent the memorandum of 28 March 1968 to the Head of the Remuneration and Allowances Division. This note amounts to an individual decision which created rights for the applicant and cannot be annulled by the decision challenged here.

The defendant replies that the applicant's claim is based on his inadequate acquaintance with the provisions of Financial Regulation No 68/313.

The provisions of this regulation show clearly that :

the memorandum of 27 January 1969 is merely a request for compensation for days of leave not used;

the memorandum of 28 March 1960, No 4091-9, amounts in substance to a proposal to the Head of the Remuneration and Allowance Division for the issuing of a payment order subject to the conditions contained in Article 39 of Financial Regulation No 68/313.

Since it is a proposal it can in no way be said to have the character of a decision, being merely a measure preparatory to payment of compensation.

Grounds of judgment

1. The first claim in the application is for the annulment of the decision of 13 May 1969 whereby the Director General for Personnel and Administration refused the applicant compensation for 47 days' leave which he had been unable to take owing the requirements of the service during the period of his employment as a member of the auxiliary staff; the second claim is that the Commission should be ordered to pay the applicant the sum of Bfrs. 77093 representing compensation for those days of leave together with interest as fixed by law.

2. The compensation in question was refused on the ground that the applicant, having been appointed to the temporary staff in Grade B 1 with effect from 1 January 1969, thereby remained continuously in the service of the Commission even though in a different capacity.

3. The decision challenged allowed the applicant to carry forward only 29 days of the leave he had not taken, applying the provisions of a notice which appeared in Staff Courier No 41 of 7 November 1968.

Admissibility

4. The question of compensation for the leave which the applicant had been unable to take was referred, in accordance with Article 31 of the Financial Regulation of the Communities of 30 July 1968 to the Director General for Personnel and Administration, as the authorizing officer in connexion with the expenditure; but he refused the compensation.

5. That decision amounts to an act capable of adversely affecting the applicant.

6. The application is therefore admissible.

Substance

7. Under Article 58 of the Conditions of Employment of Other Servants, where it has not been possible, owing to the requirements of the service, for a member of the auxiliary staff to be given leave during his employment, any days of leave not taken shall be paid for as extra days worked.

8. The question to be decided is whether this provision applies when the servant remains, subsequently, in the employment of the institution to which he is attached in a capacity other than that of auxiliary servant.

9. The defendant claims that the carrying forward of leave not taken is to be regarded as the rule.

10. The Commission states that, as far as auxiliary servants are concerned, financial compensation under Article 58 is only justified by the fact that for such servants it is frequently impossible to carry forward leave bearing in mind the brevity of the term of their employment and the lack of certainty that their contract will be renewed.

11. However, where a member of the auxiliary staff is appointed to the temporary staff for a fixed period, the limitation on the duration of his contract and the uncertainty whether or not it will be extended make it impracticable to contemplate carrying forward his leave.

12. In the present case the applicant was engaged as a temporary servant for a period of three months from 1 January 1969; his contract was then extended for successive periods of four, five or six months until 30 June 1970.

13. In the circumstances a reasonable expectancy that leave could be carried forward would be, at the least, subject to chance, so that the underlying purpose of Article 58 of the Conditions of Employment of Other Servants retain their force in the present case.

14. Accordingly there is no need to examine the legality of the communication of 7 November 1968 limiting the amount of unused leave which could be carried forward to 29 days, as it is inapplicable in this case.

15. The application for annulment is well founded.

16. It is not denied that the applicant had, on 31 December 1968, a total of 47 days' leave which he had not been able to take owing to the requirements of the service.

17. According to the applicant, the compensation amounts to a total of Bfrs. 77093, which has not been contested by the defendant.

18. In the circumstances he is entitled to that sum and in addition as requested in the application to interest thereon assessed in this case at 4.5 % from the date on which the application was lodged.

Costs

19. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

20. The defendant has failed in its submissions.

On those grounds, Upon reading the pleadings ; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties ; Upon hearing the opinion of the Advocate-General ; Having regard to the Treaty establishing the European Economic Community, especially Article 179; Having regard to the Staff Regulations of Officials and the Conditions of Employment of Other Servants; Having regard to the Protocol on the Statute of the Court of Justice of the European Community ; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby :

1 Annuls the decision of 13 May 1969 of the Director General for Personnel and Administration;

2 Orders the Commission of the European Communities to pay the applicant the sum of seventy-seven thousand and ninety-three Belgian francs, with interest thereon at 4.5 % from the date on which the application was lodged;

3 Orders the defendant to pay the costs.